Sri Thiruvengada Ramanujachariar vs The Government of Tamil Nadu and Others

Ramanujam, J.—In the first writ petition, the Petitioner has challenged the validity of an order passed by the State Government on 12th March, 1974, directing the Commissioner, Hindu Religious and Charitable Endowments (Administration) Department, Madras, to take action against the Petitioner for delegating his powers as hereditary trustee. In the second writ petition, the same Petitioner, has questioned the validity of the memo, issued by the Assistant Commissioner, Hindu Religious and Charitable Endowments (Adminstration) Department, Cuddalore informing him that any act done by the power of attorney agent on behalf of the Petitioner, will not be recognized.

The Petitioner, who is the same in both cases, is admittedly the hereditary trustee of Arulthiru Thriruvikramaswami Thirukoil, Thirukoilur Town, South Arcot District. He has given the general power of attorney in favour of two persons, viz. T.R. Raghavachari and T.R. Soundararajan, with regard to the management of the properties of the temple. Under the said power of attorney, the Petitioner has authorised them to execute document on his behalf, appear before both civil and criminal Courts and to collect outstandings due to the temple, etc. Construing the said power of attorney as delegation of the office of the hereditary trustee, the Government have issued a memo, dated 12th March 1974, wherein it has been stated that a trustee cannot delegate his functions to any other as per the decision in Shree Shree Gopal Shreedhar Mahadev v. Shasheebhushan Sarkar (1933) ILR 60 Cal. 111 and directed the Commissioner, Hindu Religious and Charitable Endowments to take action against him in the matter for the alleged delegation of the office of trusteeship.

In pursuance of the above memo, of the Government, the Assistant Commissioner, Hindu Religious and Charitable Endowments, Cuddalore, has issued a memo, dated 3rd May 1974 informing the Petitioner that any action done by the power agents, will not be accepted by the Department as the Petitioner as a trustee cannot delegate his functions. The validity of the said order of the Government as well as the consequential order passed by the Assistant Commissioner, have been challenged in these two writ petitions.

According to the learned Counsel for the Petitioner) the power of attorney in question merely enables the agents to do certain ministerial acts on behalf of the Petitioner and there is no delegation of the office of the trustee as assumed by the Respondent in this case. The explanation given u/s 47 of the Trustees Act, clearly enables a trustee to authorise an agent to do specific acts on his behalf and the provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, themselves contemplate authorised agent being appointed by a trustee. The learned Counsel for the Petitioner, therefore contends that the view taken by the Government that the Petitioner as a trustee cannot appoint a power agent to do certain ministerial acts, in the above impugned memo, dated 12th March 1974, cannot be sustained.

In Shree Shree Gopal Shreedhar Mahadev v. Shasheebhushan Sarkar (1933) ILR 60 Cal. 111, it was held that:

neither the trustee, nor a person in a representative capacity, can delegate his authority and therefore, consequently the lease is invalid, if it is granted by a person as authority for one who is either a trustee, or manager of the property leased.

In that case, the agent without reference to the principal, who was the trustee, agreed to lease the trust property. The principal did not agree to the said proposal and revoked the authority of the agent. The question arose whether such an agreement of lease entered into by the power agent, could be enforced. The general proposition laid down in the said decision that a trustee cannot delegate his authority, or functions cannot be disputed. That position is clear from Section 47 of the Trustees Act. which says that a trustee cannot delegate his office, or any of his duties, unless the instrument of the trust so provides, or the delegation is in the regular course of the business, or the delegation is necessary, or the delegation is consented to by a beneficiary of the trust. The following explanation occurs u/s 47 of the Trust Act.

A trustee''s power to appoint a power agent to do certain ministerial acts, cannot be doubted. It is not as if every ministerial act has to be done by the trustee himself. By empowering a person to do a ministerial act on his behalf, the trustee cannot be said to have delegated his authority.

In Sheikh Abdul Kayum Vs. Mulla Alibhai, , the Supreme Court expressed:

Trustees cannot transfer their duties, functions and power to some other body of men and create them trustees in their own place, unless this is clearly permitted by the trust deed, or agreed to by the entire body of beneficiaries. The rules against renuniciation of the trust by a trustee and aganist delegation of his functions by a trustee are embodied, in respect of trusts to which the Trusts Act applies, in Sections 46 and 47 of that Act.

In that case, the Supreme court also held that though the provisions of the Trust Act are not applicable to Public or Private religious or Charitable endowments, the principles contained in those sections, are those which have been applied to all trusts in all countries, and therefore, this principle can be applied to a trust to which the Indian Trust Act may not apply. The Supreme Court appears to have taken the view that there may not be any objection to the delegation of some functions and further the transfer of all his duties and powers as will amount to an obligation of the trustee''s power in favour of another is alone prohibited as that will necessarily violate the rule against delegation.

Therefore, it is clear that a trustee can appoint a power of attorney or a proxy to do an act, merely ministerial, which does not involve any independent discretion. Thus, though Section 47 of the Trust Act generally prohibits the delegation of the office of trust, it recognizes the trustee appointing a power agent or a proxy to do ministerial acts on his behalf in relation to the trust.

The provisions of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, also seem to recognise the appointment of a power agent by the trustees in relation to do certain ministerial acts. Section 28 dealing with the powers of trustee, says that the trustee of every religious institution is bound to administer its affairs and to apply its funds and properties in accordance with the terms of the trust, the usage of the institution and all lawful directions issued by a competent authority and as carefully as a man of ordinary prudence would deal with such affairs, funds and properties, if they were his own. A register prescribed in Section 29(2) shall be prepared by the trustee or his authorised agent and submitted the same to the Commissioner. Section 30 also says that a trustee or his authorised agent shall scrutinise the entries in the register prescribed in Section 29(1) every year and submit the same for the approval of the Commissioner. Section 31 says that a trustee or his authorised agent shall submit to the Commissioner for his approval once in every ten years, a consolidated register incorporating therein all alterations, omissions and additions made in the register, prepared u/s 29(1). Section 33(2) also says that it shall be the duty of the trustee, or his agent or any person concerned in the administration of the institution and all officers and servants working under him, to afford all such assistance and facilities, as may be reasonably necessary in the inspection of the property and document relating to the temple. These provisions indicate that a trustee can have an authorised agent to do certain ministerial acts such as preparation of the registers, and submission of the registers on behalf of the trust etc. So long as a trustee does not delegate his office or power of administration, he can appoint a power agent to do ministerial acts on his behalf. In this case, a persual of the power of attorney under which the Petitioner has appointed two persons to act for him in relation to certain transactions, are merely ministerial and the document cannot be construed in an) tense as a delegation of his office of the trustee or his authority. This document clearly falls within the explanation given u/s 47 of the Trust Act. Therefore, the said power of attorney will have to be recognised by the authorities, so far the acts done thereunder are merely ministerial. If the power agents have acted in excess of their authority, such transactions will automatically, be void and not blinding on the temple. In this view the orders in both the writ petitions have to be quashed. The writ petitions have to be therefore allowed and there will be no order as to costs.